SZVWJ v Minister for Immigration

[2016] FCCA 1207

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWJ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1207

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant has raised an arguable case for the relief he seeks – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12(1)(a)

Applicant: SZVWJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3545 of 2014

Judgment of: Judge Manousaridis

Hearing date: 12 May 2016

Delivered at: Sydney

Delivered on: 12 May 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the First Respondent:

Ms N Maddocks of

DLA Piper

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,416. 

3. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3545 of 2014

SZVWJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REFUGEE REVIEW TRIBUNAL

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent (Minister) moves for an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for judicial review be dismissed because it does not raise an arguable case for the relief it seeks. The application in question seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (protection visa). 

2. The applicant, a citizen of the People’s Republic of China, arrived in Australia on 23 June 2013 as the holder of a subclass 600 Visitor visa.  The applicant subsequently applied for a protection visa on 20 September 2013.  I first turn to the claims for protection that the applicant made.  These were initially contained in a statement dated 18 September 2013 that formed part of his application for a protection visa. 

3. In that statement the applicant claimed he began practising Falun Dafa[1] in 1999, and was subsequently persecuted by the Communist Party of China, illegally detained, forced to be brainwashed and illegally sentenced, and dismissed from his office. 

   [1] The applicant also used the words Falun Gong interchangeably with Falun Dafa.

4. The applicant claimed that in early 1999 a colleague of his recommended and lent to the applicant a book titled “Zhuan Falun” and two weeks later invited the applicant to practice Falun Gong.  The applicant began studying Falun Gong by following the master’s video tapes.  The applicant’s son later began practising Falun Gong with the applicant.  The applicant further claimed that in September 1999, after arriving at his workplace, he was asked to attend the office of the “party secretary”. The party secretary asked the applicant if he practised Falun Gong, to which the applicant responded “yes” and informed the party secretary of the details of Falun Gong.  A few days later the party secretary told the applicant to go to the police station.

5. The applicant went to the police station and was interrogated in relation to his practice of Falun Gong.  After this, the Public Security Bureau found the applicant and showed him “the red tape”.  The applicant was not allowed to practice Falun Gong and if he were to do so his wages and bonus would be deducted, his promotion would be cancelled and he would not get his “titles”. The applicant also claimed that in November 2001 the Public Security Bureau and police officers went to the applicant’s house and saw pictures of Master Li and other pictures hanging in the applicant’s home. The police took all the pictures, Dafa materials, and exercise tapes. 

6. The applicant claimed that on 5 February 2002 he and other Falun Gong practitioners went to Beijing by train to protest against the treatment of Falun Gong practitioners.  Railway police found the applicant and others reading Falun Gong materials.  When the train reached Beijing the police were waiting and took them to a “black house and locked us”.  The next day a number of officials went to Beijing for a meeting and after that meeting the applicant and the other practitioners were “sent back”.  The applicant says that when he and the other practitioners went to Haian Station the other practitioners were taken away separately and he was taken by the national security police and interrogated. 

7. After the interrogation, the applicant was sent to a detention centre where he was detained for one year.  The applicant said he had to attend transformation classes while in detention.  After he was released and returned to work, the applicant realised the transformation was wrong and that the master “is waiting for us to come back”.  The applicant and other practitioners gradually went back to Falun Dafa which gave the applicant hope.  In 2012 the applicant informed the factory leader and later the national security team that the transformation was wrong and that he would continue practising Falun Gong. The applicant was dismissed from his employment in March 2013. While the applicant was accompanying his father to the hospital, police searched the applicant’s home and took a handwritten book titled “Zhuan Falun” and a CD. The applicant feared he would be arrested and may die and, as a result, went into hiding at a relative’s house.  The applicant claimed he feared he would die in prison if he returns to China. 

8. The Tribunal was not satisfied as to the applicant’s credibility in relation to a number of his claims.  First, the Tribunal did not accept the applicant is a Falun Gong practitioner, or that he was a Falun Gong practitioner in China. The Tribunal found the applicant lacked knowledge of Falun Gong practices and beliefs.  Second, the Tribunal found the applicant was unfamiliar with parts of his written claims and that his vagueness and unfamiliarity with some of his claims were “indicative or suggestive that the events did not occur”. Third, the Tribunal did not accept the credibility of the applicant’s claim that he was wanted by police in China for Falun Gong activities, that the applicant had gone into hiding in China for three months before coming to Australia, or that his wife was interrogated by police about the applicant’s whereabouts during this period.  The Tribunal so found because the applicant was able to leave China on his own passport to travel to Australia without any difficulty, other than being questioned for about 30 minutes at the airport and his luggage being searched. 

9. Thus, the Tribunal did not accept the applicant was arrested and detained in China in 2002 for 12 months; or that he underwent a transformation process in relation to his practice of Falun Gong;  or that the applicant was subjected to water torture or the treatment the applicant described during the hearing before the Tribunal; or that the applicant was questioned in September 1999 regarding his Falun Gong practices; or that the applicant’s home was searched in November 2001 by Public Security officers who removed Falun Gong materials from the applicant’s home;  or that the applicant or other practitioners went by train to Beijing in February 2002 to protest about the treatment of Falun Gong practitioners;  or that the applicant and other practitioners were arrested and detained and subsequently questioned; or that a meeting occurred on 6 February 2002 involving a number of people and Chinese officials;  or that the applicant was taken into detention around 7 February 2002;  or that the applicant was dismissed from his employment in March 2013 and subsequently went into hiding for three months before coming to Australia;  or that the applicant’s wife has been unable to obtain employment in China because of the applicant’s detention record.

10. The end result was that the Tribunal did not accept the applicant “has a real chance of persecutory harm for his claim to practice Falun Gong should he return to China either now or in the reasonably foreseeable future” or that there is a real risk or chance the applicant will suffer significant harm should the applicant be removed from Australia to China. 

11. Having set out the Tribunal’s reasons, I now turn to the grounds of application filed by the applicant. The application contains three grounds of review.  At the hearing before me I offered to have each of the three grounds interpreted to the applicant who is not legally represented.  The applicant, however, did not wish to have the grounds interpreted.  He did, however, make submissions on two topics; one of which relates to ground 1.

12. I will deal with each ground set out in the application.  The first ground is as follows:

    The interpreter is not professional and did not do a good job. In the interview, when I answered the officer’s question, she always interrupted me. When I wanted to add more comments to response, she just ignored me. Thus, she did not translate my answers completely and accurately. This caused the inconsistencies mentioned in the RRT decision. The answers heard by the officer were completely different from what I wanted to say. Therefore, the decision made by RRT is unfair.

13. Before me the applicant submitted that his feeling was that the interpreter did not properly communicate what he said to her to the Tribunal. He submitted that at the beginning of the hearing the interpreter began well, but later the interpreter gave the impression of being in a hurry. 

14. The Minister submits the onus is on the applicant to provide evidence of the alleged interpretation issues, and in the absence of any evidence having been provided by the applicant the ground cannot be made out at a factual level. The Minister pointed to the response he filed, in which it was stated that ground 1 cannot be sustained absent necessary expert evidence. The Minister also pointed to the orders I made on 3 March 2015, directing the applicant to file, by 26 May 2015, evidence on which he intended to rely, and in which I directed that any party wishing to rely on the evidence of the hearing before the Tribunal should file a transcript of that hearing.

15. Given the directions that I had made, in the absence of any evidence, the applicant has no arguable case for establishing ground 1. Even if, however, I were to ignore the applicant’s not having filed any evidence, the ground on its face is not arguable. It is lacking in any particularity.  The ground does not identify the answers the applicant gave which he claims the interpreter interrupted. The ground does not identify the comments the applicant claims the interpreter interrupted the applicant from making.  It does not identify the answers the applicant claims the interpreter did not translate completely or accurately. It does not identify the inconsistencies mentioned in the Tribunal’s decision, and it does not identify the answers heard by the Tribunal, which the applicant says were completely different from what the applicant wanted to say. The applicant has not attempted to provide such particulars in any other document, or in anything he submitted to me at the hearing.  In my opinion, therefore, ground 1 is not arguable.

16. I then move to ground 2, which is as follows:

    The Refugee Review Tribunal (RRT) unfairly ignored my well-founded fear of persecution in China. I am a Falun Gong practitioner. In my case, I evidenced my experience of persecution from the Chinese government due to practice of Falun Gong.  The campaign initiated by the Chinese Communist Party (CCP) against practitioners of Falun Gong since July 1999, aimed at eliminating the practice in China. According to Amnesty International, it includes a multifaceted propaganda campaign, a program of enforced ideological conversion and re-education, and a variety of extra-legal coercive measures such as arbitrary arrests, forced labour, and physical torture sometimes resulting in death. Thus, this religion reason of fear set out in the Refugees Convention should have been considered by the RRT.

17. There is no arguable case the Tribunal ignored the applicant’s claim he had a well-founded fear of persecution because he is a Falun Gong practitioner.  And there is no arguable case that the Tribunal did not consider the applicant’s claims.  My earlier summary of the Tribunal’s reasons for decision demonstrate beyond argument that the Tribunal understood the applicant’s claims, considered them and dealt with them, unfortunately adversely to the applicant.  It is beyond argument that it was reasonably open to the Tribunal to conclude the applicant was not credible for the reasons it gave, and to affirm the delegate’s decision on that basis.  Ground 2, therefore, is also not arguable.

18. I finally move to the third ground stated in the application, and it is as follows:

    The Tribunal failed to make a fair ‘complementary protection’ grounds test.  Because I am a member of Falun Gong, I would face persecution upon return to China. There are substantial grounds for believing that, there is a real risk that I will suffer significant harm if removed from Australia to China.

19. This ground is also not arguable.  The Tribunal considered the applicant’s claims against the criterion of complementary protection in paragraph 48 of the Tribunal’s decision.  The Tribunal there said:

    I have also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk the applicant will suffer significant harm.  Having regard to my findings and reasons and the evidence as discussed above I do not accept that the applicant is a Falun Gong practitioner in Australia or that he was a practitioner in China.  I am satisfied in those circumstances that there is no real risk or real chance that the applicant will suffer significant harm should he be removed from Australia to China. 

20. The applicant’s claim, based on complementary protection, relied on the same asserted facts as the applicant’s claims for protection under the Refugees Convention. Given that the Tribunal did not accept the applicant was credible, and therefore did not accept the asserted facts on which the applicant relied, it necessarily followed that the applicant’s claims based on complementary protection could not succeed.

21. Finally, I mention the second matter on which the applicant made a submission.  The applicant said he did not want to return to China, and that he desired to remain in Australia.  That desire, understandable as it might be, does not disclose an arguable case of jurisdictional error by the Tribunal. 

22. I propose, therefore, to make an order dismissing the application, and also an order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  18 May 2016